The opinion of the court was delivered by: BARD
This is an action tried without a jury between the United States as obligee, and the United States Fidelity and Guaranty Company as surety, on a bond which was conditioned on the faithful discharge of the principal obligor's duties as a storekeeper-gauger and payment of all fines or costs imposed for defaults as such officer. I make the following special findings of fact:
1. Plaintiff is the United States of America.
2. The defendant is the United States Fidelity and Guaranty Company, a corporation organized and existing under and by virtue of the laws of the State of Maryland, having its chief office and principal place of business in the City of Baltimore.
3. The defendant is and was at all times hereinafter mentioned properly authorized to carry on business in the State of Pennsylvania as a surety company.
4. In and by the laws of the United States, it was provided as follows:
"There shall be appointed by the Secretary such number of storekeeper-gaugers as may be necessary, who shall each take an oath faithfully to perform his duties, and shall give bond, with one or more sureties, satisfactory to the Commissioner, for the faithful discharge of the duties assigned to him by law or regulations; and the penal sum of said bond shall not be less than $5,000, and said bond shall be renewed or strengthened as the Commissioner may require." (R.S. §§ 3153, 3156; Aug. 15, 1876, c. 287, § 1, 19 Stat. 152; Mar. 2, 1929, c. 510, § 1, 45 Stat. 1496; 26 U.S.C.A. Int.Rev.Code § 4010(a).
5. On or about February 1, 1934, one Howard G. Hamilton was duly appointed to the position of storekeeper-gauger under the laws of the United States and the regulations of the Treasury Department and assigned to duty under the direction of the Supervisor of Permits, Bureau of Industrial Alcohol (Now District Supervisor, Alcohol Tax Unit, Bureau of Internal Revenue), District No. 3, Philadelphia, Pennsylvania.
6. On or about February 3, 1934, a bond, Form 48, known as "U.S. Storekeeper-gauger's bond", in writing under seal was executed by Howard G. Hamilton, as principal, and the defendant, United States Fidelity and Guaranty Company, as surety, in the sum of $5,000, whereby they jointly and severally bound themselves to the United States of America in the sum of $5,000, conditioned that if the said Howard G. Hamilton should faithfully discharge the duties of storekeeper-gauger assigned to him and should pay all fines and costs that may be imposed upon him for his acts or defaults, then the obligation would be void, otherwise to remain in full force and effect.
7. Upon the delivery of the bond to the United States and the acceptance and approval thereof, Howard G. Hamilton was assigned to and entered upon the performance of his duties as storekeeper-gauger at the distillery premises of the Siboney Distilling Corporation a duly registered distiller, located at 946-64 North Delaware Avenue, Philadelphia, Pa., which duties, as provided by law and regulations, included the safeguarding of distilled spirits on the distillery premises and the prevention of their illegal removal therefrom.
8. On or about December 6, 1937, and during the continuance of the conditions and agreements provided by his bond, Howard G. Hamilton, while so assigned and on duty at the aforementioned distillery premises, and in the employment of the United States as such storekeeper-gauger, did, in violation of his official duties and the law and regulations, remove and aided in the illegal removal from said distillery premises of certain distilled spirits then and there in his official custody as storekeeper-gauger. The total amount of distilled spirits illegally removed by Hamilton was seventeen gallons of rum, 116-proof, and no more.
9. It was the duty of a storekeeper-gauger, in general, to protect the United States Government, and a part of his duties was to see that no alcohol was permitted to ...